Bender v. Davis

• Decision Date: 03 February 1937
• Docket Number: Gen. No. 23662.
• Parties: PEOPLE ex rel. BENDER v. DAVIS, Judget, et al.
• Court: Illinois Supreme Court

365 Ill. 389

6 N.E.2d 643

PEOPLE ex rel. BENDER

v.DAVIS, Judget, et al.

Gen. No. 23662.

Supreme Court of Illinois.

Dec. 10, 1936.

Rehearing Denied Feb. 3, 1937.

Original mandamus proceeding by the People, on the relation of Martha L. Bender, administratrix, against Joe A. Davis and others, as judges of the Appellate Court of the Third District, to have expunged an order permitting the Alton Railroad Company to file notice of appeal from a judgment for relator.

Writ awarded.

ORR and WILSON, JJ., dissenting.Hal M. Stone and Branson Wright, both of Bloomington, and R. H. Imig, of Minier, for petitioner.

Bracken, Radliff, Livingston, & Murphy, of Bloomington (Silas H. Strawn and Harold A. Smith, both of Chicago, and W. K. Bracken, of Bloomington, of counsel), for respondents.

FARTHING, Justice.

We granted leave, and a petition for an original writ of mandamus was filed in this court directed against Joe A. Davis, Max F. Allaben, and William J. Fulton, as judges of the Appellate Court for the Third District. The relator seeks to have expunged from the records of that court an order which permitted the Alton Railroad Company to file there its notice of appeal within one year from the rendition of a judgment for relator in the trial court. The company had previously appealed by filing its notice in the trial court within 90 days from the date of the judgment. However, it failed to incorporate in its brief in that appeal the errors relied upon for reversal at the close of its statement of the case. There is some dispute between the relator and the respondents as to whether the respondents granted leave to the company to file the notice of appeal in their court before the petition for rehearing had been denied in the original appeal, but in the view we take this is not material.

The respondents suggest that their action in allowing the company to file the notice of appeal and to comply with the rule which required the statement of errors relied on to be inserted in the brief, etc., amounted to nothing more than leave to amend the company's brief. We could not pass on the propriety of such leave to amend and thus review the Appellate Court's judgment by mandamus. Mandamus cannot be made to perform the office of a writ of error or of certiorari or appeal. People v. Shurtleff, 355 Ill. 210, 189 N.E. 291;Eisen v. Zimmer, 254 Ill. 43, 98 N.E. 285, Ann.Cas.1913B, 876.

The sole question presented by the original proceeding is, Does the Civil Practice Act authorize a party to a judgment or decree to perfect more than one appeal? Through Mr. Justice Cartwright we reviewed the history of and distinctions between writs of error and appeals in Anderson v. Steger, 173 Ill. 112, 50 N.E. 665. It is not necessary to repeat that discussion here. We pointed out that an appeal is created by statute in connection with the Constitution, and the right to appeal must be availed of by the parties authorized in strict compliance with the statute. See, also, Davison v. Heinrich, 340 Ill. 349, 172 N.E. 770; Hall v. First Nat. Bank, 330 Ill. 234, 161 N.E. 311;Hill v. City of Chicago, 218 Ill. 178, 75 N.E. 766. From these decisions it follows that if the order granting leave to the railroad company to file its second notice of appeal was valid, respondents must have statutory authority to enter it.

Section 74(1) of the Civil Practice Act (110 S.H.A. § 198(1); Ill.Rev.Stat.1935, c. 110, par. 202(1) reads: ‘Every order, determination, decision, judgment or decree, rendered in any civil proceeding, if reviewable by the Supreme or Appellate Court of this State by writ of error, appeal or otherwise, shall hereafter be subject to review by notice of appeal, and such review shall be designated an appeal and shall constitute a continuation of the proceeding in the court below. Such appeal shall be deemed to present to the court all issues which heretofore have been...